Citation Nr: 1510040
Decision Date: 03/11/15 Archive Date: 03/24/15
DOCKET NO. 09-48 671 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Whether the character of the Veteran's discharge, for the period of service from May 9, 1997 to April 9, 2007, is considered a bar to payment of Department of Veterans Affairs (VA) benefits.
2. Entitlement to service connection for a lumbar spine disability.
3. Entitlement to service connection for a left knee injury.
4. Entitlement to service connection for hypertension.
5. Entitlement to service connection for cold injury residuals or frostbite of the left big toe.
6. Entitlement to service connection for a left femur injury, claimed as a strain and contusion.
7. Entitlement to service connection for a breathing disorder, including as due to an undiagnosed illness.
8. Entitlement to service connection for joint and muscle pain, including as due to an undiagnosed illness.
9. Entitlement to service connection for fatigue, including as due to an undiagnosed illness.
10. Entitlement to service connection for sleep disturbance, including as due to an undiagnosed illness.
11. Entitlement to service connection for gastrointestinal problems, including as due to an undiagnosed illness.
12. Entitlement to service connection for headaches, including as due to an undiagnosed illness.
13. Entitlement to service connection for a skin rash, including as due to an undiagnosed illness.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESSES AT HEARINGS ON APPEAL
Appellant and his wife
ATTORNEY FOR THE BOARD
D. J. Drucker, Counsel
INTRODUCTION
The Veteran had active military service from February 1980 to April 2007 and was dishonorably discharged. A December 2008 Administrative Decision found that he did not have entitlement to VA benefits from May 9, 1997 to April 9, 2007.
This case comes to the Board of Veterans' Appeals (Board) on appeal from February 2009 and May 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.
The February 2009 rating decision, in pertinent part, denied service connection for left knee and lumbar spine disorders, a breathing disorder including as due an undiagnosed illness, hypertension, and a left big toe/frostbite disorder. Implicit in this decision was the matter of whether the Veteran was entitled to VA benefits prior to May 9, 1997. The Veteran's notice of disagreement (NOD) was submitted in June 2009.
An RO's rating decision constitutes an implicit denial of a claim when the RO addresses the claim in a manner sufficient for the claimant to deduce the claim was adjudicated. Ingram v. Nicholson, 21 Vet. App. 232, 247 (2007). That is, a reasonably raised issue will remain pending until there is some recognition of the substance of the claim in a rating decision sufficient to inform the claimant that it was in fact adjudicated. Id. at 243. The implicit denial doctrine specifically applies to Board decisions. See Jones v. Shinseki, 619 F.3d 1368, 1373 (Fed. Cir. 2010). See also Cogburn v. Shinseki, 24 Vet. App. 205, 212-14 (2010) (discussing factors to be considered when determining whether a claim was implicitly denied).
The September 2009 statement of the case clearly addresses the matter of the Veteran's character of discharge prior to May 9, 1997 and he addressed the matter in his October 2009 substantive appeal. Thus, this issue is properly before the Board at this time.
The May 2010 rating decision denied service connection for posttraumatic stress disorder (PTSD), left femur and skin disorders, and joint and muscle pain, gastrointestinal symptoms, fatigue, headaches, and sleep disturbance, including as due to an undiagnosed illness. The Veteran submitted a timely NOD in July 2010.
The Veteran's October 2009 substantive appeal did not discuss a breathing disorder and his August 2013 appeal did not address his claim regarding headaches and a sleep disturbance. However, a substantive appeal is not required to confer jurisdiction on the Board and the Board may waive the filing of a substantive appeal. Percy v. Shinseki, 23 Vet. App. 37 (2009).
A June 2013 rating decision granted service connection for PTSD and assigned an initial 50 percent disability rating. A January 2015 rating decision granted a 100 percent rating for PTSD. The RO's actions represent a full grant of the benefits sought as to the Veteran's claim for service connection for PTSD.
In December 2013, the Veteran testified during a personal hearing at the RO. In January 2015, he and his wife testified during a hearing at the RO before the undersigned. Transcripts of the hearings are of record.
During his Board hearing, the Veteran appeared to raise a claim of entitlement to service connection for bilateral hearing loss. See January 2015 Board hearing transcript. The May 2010 rating decision denied service connection for bilateral hearing loss and the Veteran did not perfect an appeal as to this claim. The matter of whether new and material evidence has been received to reopen the Veteran's claim of service connection for bilateral hearing loss is referred to the Agency of Original Jurisdiction (AOJ) for appropriate development and adjudication.
The Veteran's electronic record file includes VA treatment records, dated to December 2014, including some not initially reviewed by the AOJ in the April 2014 supplemental statement of the case (SSOC). The records are not relevant to the matters of service connection for residuals of frostbite of the left great toe and multi-joint degenerative joint disease as an undiagnosed illness. Given that the claim for service connection for headaches is granted herein, the Veteran is not harmed by the Board's consideration of these records. 38 C.F.R. § 20.1304(c) (2014).
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014).
The issues of service connection for lumbar spine, left femur, and left knee disabilities, multi-joint degenerative joint disease (a disorder manifested by joint and muscle pain), and a breathing disorder, fatigue, sleep disturbance, gastrointestinal symptoms, and a skin rash, including as due to an undiagnosed illness, hypertension, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.
FINDINGS OF FACT
1. On November 16, 1999, the Veteran was eligible for unconditional discharge, having completed his period of obligated service; was not discharged due to reenlistment and was eligible for, and received, an honorable discharge.
4. Residuals of frostbite of the Veteran's left great toe were incurred during active military service prior to November 17, 1999.
5. The Veteran's current tension headaches were incurred during active military service prior to November 17, 1999.
CONCLUSIONS OF LAW
1. The character of the Veteran's service does not constitute a bar to VA benefits prior to November 17, 1999. 38 U.S.C.A. §§ 101, 5107, 5303 (West 2014); 38 C.F.R. §§ 3.1, 3.12, 3.13(c) (2014).
2. The criteria for service connection for residuals of frostbite of the left great toe have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303 (2014).
3. The criteria for service connection for headaches have been met. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Notify and Assist
As provided for by the Veterans Claims Assistance Act (VCAA), VA has a duty to notify and assist veterans in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014).
The Board is agreeing with the Veteran that the period of his service prior to November 17, 1999 was honorable and that he is eligible for benefits during this period; hence this aspect of his appeal is substantiated. The claims being decided in this appeal are also granted; hence they are substantiated and further assistance is not required.
II. Facts and Analysis
A. Character of Discharge
The Veteran contends that he had honorable active service through November 16, 1999 in the United States Army. See Board hearing transcript at page 4. He points to an Honorable Discharge Certificate documenting his discharge on November 16, 1999. A reenlistment contract for an indefinite period of years is signed by him and dated November 17, 1999. At that time, he indicated that he was never convicted of a felony or other offense, imprisoned by a court, or on parole.
According to the September 2003 general Court Martial Order #19, in April 2003, the Veteran pled guilty and was found guilty of sodomy and indecent acts that occurred on or about May 1, 2002.
The Veteran was sentenced to be discharged from service with a dishonorable discharge, confined for six years, and reduced in rank to an E-1. In September 2003, the sentence was approved. A December 2006 Court Marital Order #347 executed the Veteran's dishonorable discharge.
A discharge or release from active service under conditions other than dishonorable is a prerequisite to entitlement to VA pension or compensation benefits. 38 U.S.C.A. § 101(18); 38 C.F.R. § 3.12(a). A discharge issued under honorable conditions is binding on VA. 38 C.F.R. § 3.12(a). There are two types of character of discharge bars to establishing entitlement for VA benefits: statutory bars found at 38 U.S.C.A. § 5303(a) and 38 C.F.R. § 3.12(c) and regulatory bars listed in 38 C.F.R. § 3.12(d).
As to the statutory bars, benefits are not payable where the former service member was discharged or released under one of the following conditions listed under 38 C.F.R. § 3.12(c) by reason of the sentence of a general court-martial.
A discharge in order to reenlist during peacetime service is considered a conditional discharge if it was prior to the date the person was eligible for an unconditional discharge. 38 C.F.R. § 3.13(b). In these circumstances, the entire period of service typically constitutes one period of service and entitlement will be determined by the character of the final termination of such period of service. Id.
A service member may, however, be considered to have been unconditionally discharged or released from active military, naval, or air service if the following conditions are met: (1) the person served in the active military, naval, or air service for the period of time the person was obligated to serve at the time of entry into service, (2) the person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment, and (3) the person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment. 38 C.F.R. § 3.13(c).
If all three requirements are met, the entire period of service does not constitute one period of service and, instead, the initial obligated period of service and the reenlistment period beyond the initial obligated period may be considered distinct periods of service when the last period of service is terminated under dishonorable conditions. 38 C.F.R. § 3.13(b); VAOGCPREC 8-2000 (July 25, 2000).
The Veteran does not dispute that he was discharged by reason of the sentence of a general court martial and is ineligible for benefits based on his final period of service. Rather, he maintains that he had honorable service prior to November 17, 1999, is entitled to VA benefits based on that period of service.
Prior to November 17, 1999, the Veteran's military record is replete with his repeated reenlistment contracts and glowing personnel evaluations. He was promoted and rose to the rank of Sergeant First Class. His active duty service was honest, faithful, meritorious, and of benefit to the Nation, as demonstrated by his performing service during the Persian Gulf War. A Good Conduct Medal was awarded in January 1987 for the period from January 1983 to January 1986, an Army Commendation Medal was awarded to him in January 1986 for the period from March 1984 to November 1985, and another Good Conduct Medal was issued on February 14, 2001, for the period from January 2, 1998 to January 1, 2001.
Service department records indicate that as of November 16, 1999, the Veteran received an Honorable Discharge Certificate. These records also show that he had completed his period of obligated service on November 16, 1999, and enlisted in his final period of service the following day. The Veteran received an unconditional discharge on November 16, 1999, and the character of his discharge is not a bar to benefits based on the periods of service that ended on that date. 38 C.F.R. § 3.13(c).
B. Service Connection
A veteran is entitled to compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b).
Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); but see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (continuity of symptomatology can be applied only in cases involving diseases explicitly recognized as chronic under 38 U.S.C.A. § 1101; 38 C.F.R. § 3.309(a)).
To establish service connection, evidence must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). This is a direct service connection theory of entitlement. See Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).
Certain chronic diseases may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014).
Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.").
When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011).
Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994).
Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).
Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
1. Left Big Toe/Residuals of Frostbite
The record shows a current diagnosis of residuals of frostbite of the left great toe (numbness). See January 2009 VA cold injury examination report.
The remaining questions are whether there was a disease or injury in service and whether there is a link between the current disability and the in-service disease or injury.
The Veteran testified that he incurred frostbite to his left great toe on guard duty at Fort Dix in 1980. See Board hearing transcript at pages 13-14, and 42. He reports that he was left in place in excess of the allocated time and could not walk by the time he was retrieved. Id. The Veteran received medical treatment for a frozen toe and a profile for cold weather injury. He subsequently experienced loss of feeling his toe. Id. at 14 and 44.
Service treatment records show that, on January 29, 1980, the Veteran was seen for swollen toes with a blister on the big toe. His toes had been numb for two or three days and there was tenderness and pain on eversion.
The January 2009 VA cold injury examination report includes the Veteran's report of a history of frostbite of the left great toe on January 29, 1980 during basic training at Fort Dix. He was guarding an old warehouse and exposed for several hours. His great toe was white and cold. The Veteran was treated by thawing and given a profile for cold weather. He currently complained of constant numbness and the inability to feel pain in his great toe. After clinical examination, the diagnosis was residuals of frostbite of the left great toe (numbness).
The Veteran testified that he had had left great toe numbness since service. See e.g., Board hearing transcript at pages 8-9. He is competent to report observable symptoms of toe disability, such as toe numbness. See Layno v. Brown, 6 Vet. App. at 470.
The January 2009 VA examiner diagnosed the Veteran with residuals of frostbite of the left great toe (numbness). While the examiner did not specifically attribute the onset of the frostbite residuals to the Veteran's active service, he did not find the Veteran's report of the onset of frostbite of his left great toe in service incredible or inconsistent with the circumstances of his service.
The Veteran provided credible reports regarding his left great toe frostbite in service. Service connection may be granted upon a finding of continuity of symptomatology, not necessarily continuity of treatment, between a current disorder and service. 38 C.F.R. § 3.303(b); see also Wilson v. Derwinski, 2 Vet. App. at 19.
Given that service treatment records include the Veteran's treatment for swollen toes and a blister and numbness of the great toe in January 1980, and that the January 2009 VA examiner diagnosed residuals of frostbite of the left great toe, and given that the only probative evidence regarding the Veteran's left great toe frostbite residuals are his credible statements, the evidence is at least in equipoise as to the question of service connection and that residuals of frostbite of the left great toe as likely as not had their onset during his period of active service. With resolution of reasonable doubt in the Veteran's favor, service connection for residuals of frostbite of the left great toe is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.
2. Headaches
The record shows a current diagnosis of headaches, possibly tension. See July 2009 VA examination report.
The remaining questions are whether there was a disease or injury in service and whether there is a link between the current disability and the in-service disease or injury.
Service treatment records dated prior to November 17, 1999 include the Veteran's complaints of headaches. On December 12, 1986, he complained of headache and backache and was diagnosed with a viral syndrome. On November 16, 1988, the Veteran complained of dizziness and headache, and denied any prior history of headache. When seen on December 14, 1995, the Veteran complained of having a headache for five days and was diagnosed with tension headaches.
Post service VA treatment records show that, in July 2009, the Veteran underwent a sleep study evaluation and reported having a daily slight headache in the morning. A November 18, 2009 neurology clinic record indicates that he reported developing headaches after a fall from a helicopter in 1981. Depression and chronic headaches were noted.
At the July 2009, VA examination the Veteran gave a history of headaches since 1991.
February 19 and May 27, 2014 VA medical records indicate that the Veteran had migraines without aura.
The Veteran has reported headaches since service. See e.g., Board hearing transcript at pages 8-9. He is competent to report observable symptoms of headache disability, such as headache pain. See Layno v. Brown, 6 Vet. App. at 470.
The July 2009 VA examiner did not specifically attribute the diagnosed headaches to the Veteran's active service.
The Veteran provided credible reports regarding his headaches in service. Service connection may be granted upon a finding of continuity of symptomatology, not necessarily continuity of treatment, between a current disorder and service. 38 C.F.R. § 3.303(b); see also Wilson v. Derwinski, 2 Vet. App. at 19. Headaches could be viewed as a chronic disease on the basis of a disease of the nervous system
Thus, given that service treatment records include the Veteran's diagnosis of tension headaches (in December 1995) and that the July 2009 VA examiner similarly diagnosed tension headaches, and given that the only probative evidence regarding the Veteran's headaches are his credible statements, the evidence is at least in equipoise as to the question of service connection and that headaches are as likely as not had their onset during his period of active service. With resolution of reasonable doubt in the Veteran's favor, service connection for headaches is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.
ORDER
The character of the Veteran's discharge is not considered a bar to payment of VA benefits prior to November 17, 1999.
Service connection for residuals of frostbite of the left great toe is granted.
Service connection for headaches is granted.
REMAND
Lumbar Spine
In December 2012, a VA examiner noted the Veteran's reported history of a fall from a helicopter in 1981 and complaints of back problems since that time, and diagnosed degenerative disc disease and degenerative joint disease of the thoracolumbar spine. The examiner opined that the lumbar spine disability was less likely as not incurred in or caused by active service. The examiner explained that an October 16, 1991 service examination record indicated the Veteran had an episode of low back pain prior to service and never noted since.
It is unclear if the examiner reviewed all the Veteran's service treatment records, particularly those noting his repeated complaints of, and treatment for, low back pain prior to 1991.
An opinion is needed as to whether the Veteran's complaints of low back pain prior to November 17, 1999, represent the onset of any currently diagnosed lumbar spine disability. See 38 U.S.C.A. § 5103A(d) (West 2014); McLendon v. Nicholson, 20 Vet. App. 79 (2006).
Left Femur
The Veteran asserts that he injured his left femur when he fell off the helicopter in 1981 and reinjured it playing sports. See Board hearing transcript at page 17 and December 2013 personal hearing transcript at pages 7-8. He indicates that an x-ray was taken in 1981 and that a magnetic resonance image (MRI) taken at Fort Bragg in 2001 showed an old hairline crack. See Board hearing transcript at page 18. The Veteran states that he currently has left femur problems for which he was advised that only pain medication was available. See December 2013 hearing transcript at page 9.
An undated service treatment record shows that the Veteran had a left femur sprain and contusion.
Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. at 79. Here the low threshold for obtaining an examination has been crossed.
Left Knee
The Veteran reports that he fell out of a helicopter onto his left side in 1981. See Board hearing transcript at page 3 and December 2013 hearing transcript at page 27. He developed knee pain and swelling for which Ibuprofen was advised. Id. In 2001-2002, a MRI of his knee was performed at Womack Army Medical Hospital and arthroscopic surgery was ultimately performed. Id. at 7. He had difficulty standing and climbing stairs. See December 2013 hearing transcript at page 27.
Service treatment records show that, on March 2, 1981, the Veteran complained of left knee swelling and possible traumatic arthritis was noted. A June 2, 1983 clinical entry includes his complaints of joint pain regarding the left leg, hip, knee, ankle, and toes for one month. He had cracking and popping in the knee and trouble going up stairs. The diagnosis was chondromalacia, Ecotrin was prescribed, and he was advised not to run for five days.
On November 21, 2000 and June 11, 2001, he reported left knee pain. In February 2001, a left knee meniscectomy was performed.
In December 2012, a VA examiner diagnosed the Veteran with left knee meniscus tear diagnosed in 2000 and treated with arthroscopic intervention. The examiner opined that the left knee disability was less likely as not incurred in service as the examiner was unable to find documentation in the service treatment records of a chronic knee condition prior to 1988.
Here, too, it is unclear if the examiner reviewed all the Veteran's service treatment records, particularly those in 1981 and 1983 regarding left knee pain. A new opinion is warranted to determine if current left knee disability had its onset in active service prior to November 17, 1999.
Multi-Joint Degenerative Joint Disease (Disorder Manifested By Joint and Muscle Pain)
Service treatment records show that, on June 2, 1983 the Veteran complained of joint pain regarding his left leg, hip, knee, ankle, and toes, for one month. In September 1984, he was treated for left heel pain and numbness, attributed to nerve inflammation. In January 1988, a tow bar fell on his right middle finger. March 1988 clinical records show complaints of right thumb pain with a need to rule out gout and right thumb and right third finger pain with mild nerve damage to the right third finger. April 1989 records reflect that the Veteran took Indocin for joint pain of the right hand and sore right thumb.
Service connection is in effect for left shoulder and right middle finger disabilities.
In December 2010, the VA examiner diagnosed the Veteran with multi-joint degenerative joint disease but did not offer an opinion as to whether the multi-joint degenerative joint disease had its onset during the Veteran's active service prior to November 17, 1999. A new opinion is warranted.
Breathing Disorder
A December 2009 VA examination report notes the Veteran's report of using an inhaler, and history of a collapsed lung. The diagnosis was a remote history of pneumothorax secondary to a motor vehicle accident and a collapsed lung. The examiner opined that the Veteran's current respiratory condition was not due to or a result of blunt chest trauma. The examiner's rationale was that the Veteran's current complaints of shortness of breath cannot be credited to a pneumothorax as the pneumothorax will heal and does not cause further damage after healing.
The examiner did not comment on the Veteran's report of having severe pain from the site of a chest tube placed on his left side following his 1992 motor vehicle accident. A new VA opinion is warranted.
Fatigue and Sleep Disturbance,
Service treatment records include the Veteran's complaints of having problems sleeping on January 12, 1982. Results of a sleep study performed on October 4, 1999 show that sleep apnea was not observed. An October 26, 1999 record indicates that the sleep study showed no apnea but that the Veteran was an extremely light sleeper, and that might explain why he felt fatigued. The examiner was unable to assess the presence or absence of sleep apnea.
Post service, results of a November 2009 sleep study included idiopathic hypersomnia. VA medical records dated, during 2012 and 2013, include sleep disturbance among the Veteran's medical problems.
An opinion is needed as to whether the Veteran's complaints of sleep problems and fatigue prior to November 17, 1999, represent the onset of any currently diagnosed fatigue or sleep disturbance disability. See 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. at 79.
Gastrointestinal Symptoms
The Veteran claims that he experienced gastrointestinal problems after his Persian Gulf War service. See Board hearing transcript at page 21. He was diagnosed with esophageal reflux disease and lactose intolerance. See December 2013 personal hearing transcript at page 47. An upper gastrointestinal (UGI) series was performed and he was told he had acid reflux for which Nexium was prescribed in 2001. Id. at 48.
Service treatment records show that, on February 9, 1981, the Veteran complained of lower abdominal pain and frequent urination and had a history of bladder infection. A possible stomach ulcer was noted on January 19, 1982, when the Veteran's sputum brought up blood and he had burning pain in his chest with a cough.
On August 5, 1985, the Veteran complained of pain and the assessment was a need to rule out peptic ulcer disease (PUD). An UGI was recommended. When seen on August 22, 1985 for follow up of the UGI, he had a little reflux and the diagnosis was questionable PUD. A January 1987 medical history obtained during a periodic service examination notes a medical history of ulcer-like symptoms looked into by medical clinicians and an UGI was given. On October 10, 1996, the Veteran complained of diarrhea and nausea and stomach cramps for three nights.
A February 7, 2002 record includes an impression of gastroesophageal reflux disease (GERD). A March 1, 2002 record shows that a EGD (upper endoscopy) was planned. The impression was chronic heartburn, with frequent belching, burning in the mid chest and daily heart burn. When seen on April 9, 2002 for follow up, the Veteran was noted to still have epigastric burning. The impression was dyspepsia, helicobacter.
Post service, the December 2010 VA examiner diagnosed GERD but did not render an opinion as to its onset.
VA medical records dated, in July 2012, show that the Veteran was treated for acute diverticulitis. When seen in the gastroenterology clinic in October 2012, he gave a history of intermittent reflux and heartburn for 20 years. In December 2012, a colonoscopy and EGD were scheduled. The colonoscopy revealed that he had metastatic colon cancer.
An opinion is warranted as to whether the Veteran's current gastrointestinal disability had its onset during active service prior to November 17, 1999.
Skin Rash
The Veteran maintains that he had an intermittent rash on his forehead and back since his Persian Gulf War service. See Board hearing transcript at page 24. He believed that flying in areas with burning fuel without protective gear caused or contributed to his skin problem. See December 2013 personal hearing transcript at pages 15-16. He treated his skin problem with topical medication. Id. at 19.
Service treatment records show that, on April 4, 1983, the Veteran was treated for a groin rash for several days, diagnosed as tinea cruris. Tinea pedis of the right foot was noted on August 3, 1983 and August 30, 1995. He was treated for nevus on his back, buttock, and right shoulder in March 1988, September 1999, and April and November 2005. A November 2, 2005 record includes a diagnosis of razor burn due to issued razor and mild pustular acne.
The December Persian Gulf War 2010 VA examination report notes the Veteran's symptoms of an intermittent rash on his forehead and left arm.
The Board recognizes that the duty to assist includes an examination of the Veteran at times when the disability is in the most prominent condition, such as flare-ups. Ardison v. Brown, 6 Vet. App. 405 (1994); see also Voerth v. West, 13 Vet. App. 117, 123 (1999) (a new VA examination for flare-ups of short duration would be impractical).
A new examination is warranted to determine if the Veteran has a current skin disability that had its onset during active service prior to November 17, 1999.
Hypertension
In December 2012, a VA examiner noted the Veteran's history of hypertension diagnosed in 1994 and opined that it was less likely as not that the hypertension was incurred in service. The examiner explained that she was unable to find documentation in the service treatment records prior to 1988 of consistently elevated blood pressure readings that would be required for the diagnosis and treatment of hypertension.
However, the VA examiner did not comment on whether the repeated episodes of high blood pressure prior to and after 1988, and prior to November 17, 1999, represent the onset of any currently diagnosed hypertension. A new opinion is needed.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)
1. Refer the Veteran's claims file to a VA physician to obtain opinions regarding the claims for service connection for disabilities other than skin disease. The examiner should review the claims file and a copy of this remand, and address the following.
The examiner should opine whether any lumbar spine, left femur, left knee, multi-joint degenerative joint disease, chest or breathing disability, fatigue or sleep disturbance, a gastrointestinal disorder, or hypertension, shown since the current claim at least as likely as not had its onset in service or is the result of a disease or injury in service prior to November 17, 1999.
The examiner should provide reasons for these opinions. In rendering an opinion, the physician examiner is particularly requested to address if the findings of lumbar spine pain (noted on April 4, 1981, October 1, 1985, and in January and February 1998) represented the onset of any current degenerative disc disease and degenerative joint disease of the lumbar spine?
Do the findings of left knee pain (noted on March 2, 1981 and June 2, 1983) represent the onset of any current left knee disability, including an undiagnosed illness or a medically unexplained chronic multisymptom disease of poorly understood etiology?
Do the findings of joint pain (noted on June 2, 1983 and in September 1984) represent the onset of any current multi-joint degenerative joint disease an undiagnosed illness or a medically unexplained chronic multisymptom disease of poorly understood etiology?
Do the findings of a chest tube insertion and subsequent complaints of chest pain that may be related to that (in February 1992 and June 1998) represent the onset of any breathing or chest pain disability or are the symptoms due to a chronic, undiagnosed illness; or a medically unexplained chronic multisymptom disease of poorly understood etiology?
Do the reports of sleep difficulty (in January 1982) being a very light sleeper and feeling fatigued (in October 1999) represent the onset of any current fatigue or sleep disturbance disability or are the symptoms due to a chronic, undiagnosed illness; or a medically unexplained chronic multisymptom disease of poorly understood etiology?
Do the reports of gastrointestinal problems (in February 1981, and on January 19, 1982, August 5 and 22, 1985, in October 1996 and January 1987) represent the onset of any currently diagnosed gastrointestinal disorder or are the symptoms due to a chronic, undiagnosed illness; or a medically unexplained chronic multisymptom illness of poorly understood etiology?
Do the reports of high blood pressure (in January 1980, February 1991, August 1992, February and November 1993, March and August 1994, October 1996, and April 1999) represent the onset of any currently diagnosed hypertension; an undiagnosed illness or a chronic multi-system illness of poorly understood etiology?
A clinical examination should be scheduled if deemed necessary by the physician.
The examiner must account for the Veteran's report of symptoms beginning in 1981. If the examiner rejects the Veteran's reports, the examiner must provide reasons for doing so. The absence of supporting records is not, standing alone, sufficient reason to reject the Veteran's reports.
If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified.
2. Schedule the Veteran for a VA skin examination by a physician to determine whether current skin disabilities are related to disease or injury inservice; an undiagnosed illness; or a medically unexplained chronic multisymptom disease of poorly understood etiology. The claims file and a copy of this remand should be made available prior to the examination. All indicated tests and studies should be performed and all clinical findings reported in detail. The examiner is requested to address the following:
Is any skin disability shown since 2009 at least as likely as not caused by a disease or injury in active service prior to November 17, 1999?
All opinions and conclusions expressed must be supported by reasons in a report.
The examiner must account for the Veteran's report of symptoms beginning in 1981. If the examiner rejects the Veteran's reports, the examiner must provide reasons for doing so. The absence of supporting records is not, standing alone, sufficient reason to reject the Veteran's reports
If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified.
3. If any benefit on appeal remains denied, issue a supplemental statement of the case. Then return the case to the Board, if in order.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs